In the “History, Art & Archives” section of the House of Representatives website – in the subsection dealing with investigations and oversight – the introductory paragraph begins: “The Constitution says nothing about congressional investigations and oversight, but the authority to conduct investigations is implied since Congress possesses ‘all legislative powers.’”
This leaves many questions: How does one define “oversight,” and what has this to do with legislative powers? More importantly, at what point do congressional investigations evolve from what is necessary for efficient lawmaking to overreach, abuse of power, and the usurpation, by Congress, of law enforcement and judicial powers?
Implied Investigative Powers
It would seem reasonable that the crafting of effective legislation requires lawmakers to request and/or gather information from federal departments and agencies, so this “implied” authority to investigate is claimed as a natural extension of Article I, section I of the U.S. Constitution, which vests all legislative powers in the Congress. In order to craft legislation, congressional committees must also question and confer with certain private individuals and leaders in business and industry.
All of that fits with the “implied” authority to investigate that comes from the Constitution. The Supreme Court has also recognized this as an essential function of Congress.
The Fiction of Congressional Oversight
Lawmakers in Congress love to refer to their “constitutional duty of oversight” and use this or similar phrases to justify any hearing or investigation on any subject. Oversight, however, implies far more than simply gathering information for the purposes of legislating, and no such authority is granted to Congress in the Constitution. Even though federal government agencies were mostly created by acts of Congress, the latter’s oversight of the former is not strictly constitutional but, over the years and decades, Congress wrote its own rules to grant itself that entirely undefined authority.
When congressional oversight is questioned, the standard defense is that it is part of the “checks and balances” envisioned by the Founding Fathers, who were concerned by the prospect that any one of the three “separate but equal” branches of government would gather too much power to itself and eclipse the other two branches. James Madison, in particular, never passed up an opportunity to warn against the concentration of power in any one branch.
That mechanism of checks and balances does not extend to congressional oversight, though. It is already built into the Constitution itself. Congress already has the ability to “check” the executive branch; it has the authority to appropriate and direct funds, it has the power to override a presidential veto, and – if the president acts illegally – it can impeach and remove him from office. The executive branch has the power to check the legislative branch via the presidential veto of a bill. The president gets to appoint administration officials and overseas ambassadors – though with the advice and consent of the Senate, which is another check on the power of the executive.
The judicial branch is, arguably, the one branch of the federal government subject to the fewest checks. Nevertheless, the president appoints Supreme Court justices and other, lower court federal judges – again, with the consent of the Senate – and so this amounts to a check on the judicial branch.
The Weaponization of Article I
This carefully balanced ecosystem is all explicitly laid out in the Constitution. Congressional oversight of the executive branch is not. House Democrats continue their attempts to bully and harass President Donald Trump and his administration through a continuous staging of hearings and multiple investigations. What they are doing goes well beyond the authority granted to them in the Constitution.
Furthermore, the president’s political foes intend to investigate aspects of his private business dealings. This, too, is far beyond the scope of their authority. In deciding the 1880 case Kilbourn v. Thompson, the Supreme Court held that the authority of Congress to investigate a matter could be exercised only “in aid of the legislative function.” The court also ruled that Congress had no authority to invoke its investigative power for “an inquiry into the private affairs of the citizen.” Years later, Chief Justice Earl Warren, appointed by President Dwight D. Eisenhower, wrote: “[The court has] no doubt that there is no congressional power to expose for the sake of exposure.”
It is both unreasonable and historically inaccurate, then, to argue that Congress has no legitimate authority to investigate. It would, however, be equally false to suggest that the legislative branch has unlimited authority. If a congressional investigation is not being conducted for the purpose of crafting efficient legislation or to examine the effectiveness of legislation already made law, then it is an overreach; it is an abuse of power not granted to that branch of government. It is, quite simply, a weaponization of Article I of the Constitution.
As for oversight; it has too vague a definition to be an acceptable function of Congress. The Founders would not and did not countenance the idea of Congress having the power of oversight of either of the other branches of government. While several Supreme Court opinions have established the authority of Congress to investigate both the executive branch and private organizations, it has always been held that such investigations would be for strictly legislative purposes.
Congress cannot simply choose to investigate any individual or government agency to gain political advantage or to damage a person’s reputation. It has no constitutional power, either explicit or implicit, to perform “oversight” of anything. In the final analysis, President Trump has no duty to co-operate with congressional investigations not opened for the purpose of legislating. Democrats in the House of Representatives are attempting to ordain themselves the supreme branch of government, without whose approval nothing gets done.
The Founding Fathers certainly favored Congress above the other branches of the government they created. They believed that the representatives of the people and of the states would always prevent the United States of America from falling into tyranny. Perhaps they could not imagine that Congress itself would become the most tyrannical element of the nation’s leadership.